Copyright and intellectual property

When you create any media content that is intended for use in the public, regardless of commercial or not-for-profit use, you need to have a ‘chain of title’ document in place. ‘Chain of title’ is a rights management term to establish who owns what in what order of control, share and license, and is used to prove to other parties that you have the right to make your work with the contributions / creative elements you have used.This is important, as it not only protects yourself, but also your partners and contributors. For example, you don’t want your work to be taken down [and potentially dragged through the courts] just because you used a piece of music a friend said would be ok to use… without providing proof of title to you [that s/he owned it or had the rights to use it].This applies to all creative input: music, likeness of a person [photos, video], artifacts, music - even ideas, as long as they are committed to a medium that can serve as proof that this person had created this concept at a certain date.Here are some sample agreement templatesThere are two other reasons for clear agreements: You never know what may happen to your project; something that started as a small thing may attract a broadcaster’s interest, and one of the first things they will want to know is who owns and controls the rights to the project.The other is self protection - as above – you don’t want that a project can be destroyed by a disgruntled community member or partner, just because they suddenly assume that this little community project is going to be the next Harry Potter and they want a piece of it, or they change their mind at the last minute, because they don’t like the way they look on screen. [It happens! Better to discuss this up-front and ensure everyone knows the limits of their rights from the start.]

Demystifying funding contracts

First rule of contracts: call them agreements. Yes, they are still a contractual obligation between parties, but if you think of them as something that every party can agree on, it becomes less threatening. Remember: Everything in life is negotiable. Even under the law there is a proviso for fair dealings between people – but this understanding gets constantly pushed by the power of influence, that some people and their organisations can assert – or think they are entitled to…But still, you can negotiate: And this does include funding contracts from federal or state agencies, even though they may not like this idea. It is simple: They want you to do something to make them look good, and make their Minister look good in front of their constituency. And in turn they are willing to give you some of the tax payers money – the people’s money – to deliver on the terms of the agreement [what you proposed to do in your project, if they fund you].That means they want you to do something for them. You have come this far through the expression of interest, first submission, assessment, shortlist, second stage submission and other arcane bureaucratic processes, that they will negotiate with you within reason, because they have invested in you too. The main thing to remember is to be transparent and reasonable, in relation to your sector or industry standards [competitive costing, rates and other measurable expectations]. As long as you can show a good argument for your case, you have every right to re-negotiate your terms.

Equitable Agreements

We decided to use this business terminology, even though it seems out of place in an arts and culture context, because it provides an interesting lens into your work and the relationships that are always involved when creative work is expended to produce a product during a more or less collaborative process.A crucial part of an equitable agreement is that all partners and participants benefit. So think creative commons, moral rights, new ways to manage and share IP and copyright. This space is evolving, but most people are scared of legalese and so the old structures of control and ownership survive unchallenged. Keep it simple and build real trust. We see too many ‘15 minutes of fame’ promises being made that don’t change a thing. Broken promises just reinforce feelings of disempowerment, however low the budget. Deliver what you agreed on, based on an open process and transparent negotiations. Over-delivery is even better.Equity should show the level of investment [money, willingness to spent time and effort, access to equipment / venue, unique and exclusive access to the story, special knowledge and artistic skills, reputation, political leverage or power of influence on behalf of the project and traditional knowledge to name a few factors]. As you can see from the list, it will be tricky to assess these factors comparatively, but even though they are all ‘subjective’, they nevertheless all are necessary factors to make art. And that’s where the ‘show me the money’ trick comes in: even in the most soft hearted community arts fluff fests, you can delineate the terms by allocating a value to them in a budget spread sheet, and the tradable value in our current society is money. This currency can help you to establish what level of influence you are willing to accept in your project: This could be a ‘final say’ clause for your key contributors, without her access you don’t have a project, as it all flies or falls with her – or it could be the number of mid-level cash funders that you can mobilise as leverage against a bigger funder who is trying to push their weight around. And you always have ‘walk away’ power, it helps to work out what terms are not negotiable for you, the bottom line where you would rather not make the project, and therefor not accept funding dependent on conditions that are unacceptable for you.We have had projects with only a small amount of cash committed but we were still able to win a funding submission as we could prove that our in kind or sweat equity from dozens of community partners was worth real cash, as their contributions were needed to make the project happen. This is important, as a lot of community work involves hours of in-kind investment, that often doesn’t feature on the budget. The matched investment needs to be close to 50/50, half requested the other half from your other partners.And finally – if you are not certain if you can adequately protect and represent yourself in your agreement or contract negotiations, seek legal advise. Some firms may offer pro-bono support, there are free legal services offered for some special interest groups who can’t afford access to lawyers. Also, it may pay to invest money into a good lawyer upfront for a big project, as you can avoid spending a lot more later getting out of trouble…

Moral rights

Moral rights are rights of the creator of a copyrighted work to have the integrity of the work recognised and protected from unauthorised alterations, abbreviations, distortions and other mutilations. This protection of the integrity of the work even applies once you handed over the copyright to someone else or have given them license to do certain things – if they don’t respect the integrity of the work [if not clearly agreed by you in writing for them to do limited alterations], you may have the rights to pursue them for damages or force them to undo the damage. If this or similar scenario applies, get legal advise, as Moral Rights are dealt with differently in each country or state.see links below

Distribution agreements

Make distribution agreements work for you. Most of the above applies here too. Everything is negotiable. Don’t swallow an unlimited license deal with no timeframe and all territories to get a broadcaster for your documentary on first draft: push it back and say how about a three-year license for broadcast in xyz territories? Perhaps they settle for 5 years and you can then sell the show to another network covering other areas. Generally larger organisations send out a standard agreement, that is in the best interests for them, it is up to you to rework it to represent your interests.Always get the other side to argue their case, don’t let them box you in. Remember that they want your content, otherwise they wouldn’t be talking to you. Reframe the argument in your favour. Propose a reasonable arrangement. Watch a few Boston Legal episodes and pretend to think like a lawyer [or get one involved, if you can]. And always be prepared to walk away, in some cases this can give you more power than you think.Be careful with the recent changes in social networking and online platforms: read the small print. Who owns what, who controls what, for how long? What rights are you willing to hand over? Is there value they see that you can’t see yet? Get someone else to read it. What are the real risks? In most cases, there is no need to be overprotective, since it was your initial plan to show the work to as many people as possible… But make sure you keep a keen eye on what they can and can’t do with your work. In the end, any contract or license agreement is only as good as you can fight in court or in the arena of public opinion.

Credits: Importance of gratitude

Acknowledging your contributors is essential – get it right the first time and people and organizations will love working with you again.In documentary and community-driven projects, most people are volunteering their time to your project. Sometime you might be lucky to have community staff on payroll who put time into your project, but even when we work with paid people, their daily schedules are often already committed.Even with professional film crews, their pay only goes so far – that’s why credits are one of the most important currencies in documentary production. Pay your respect with great care to everybody who gave time, effort, info – whatever it was – include them in your Thank You at the end of the film or the bottom of your webpage. It is so easy and doesn’t hurt anyone – but even easier to forget, because we get stressed and there is one thing too many to take care off so close to the deadline…Make the time. Check your credit list again, email it to your key liaison person in the community to double check: • are all names spelt correctly? Is this the name they want to be acknowledged with? • is everybody on the list? • are all organizations included?

Check your agreements

Before you sign off on your edit, check your funding contract again [if you have received funding that is]: • What is the exact wording that needs to be mentioned at the end? • Do you have the correct logo for their organization? Get several versions from them if possible, as jpeg and tiff files. • Is there a hierarchy of logos, ie do sponsors / funders who gave more get listed first with bigger logo etc. How can you make it fair for all? • If at all unclear, CALL THEM – before you have printed your film onto 1000 DVDs.

Generosity

As per above – even if you didn’t really like a person you interviewed, pay them respect. You want to be known to pay your dues. people want to feel appreciated and safe. But – be aware, don’t promise something that you can’t deliver. For example, if your funding agreement or any other contract states that you can’t have any other logos attached to your project, don’t offer it to anyone else. Or – renegotiate the contract so that you don’t feel restricted.

Values and budgets

Often in amateur film making, people laugh at the length of the credits, as they often seem to run longer than the film itself. Yes, that is weird and funny, but reflects the favours given and the huge amount of unpaid work that most people put into the film so you can see it and have a laugh. If your artistic sense can’t handle this disproportion, find a way to include credits elsewhere – on the cover of the DVD, an extra leaflet or on a website. We often make 90-seconds web trailers for longer docos, where it just doesn’t work to have all the credits running, but it is easy to include a website URL and a 3 second logo plate with all your partners. If you have a budget [aka too much money] to play with, make sure you include a little [or bigger] launch party or invite all crew, participants and contributors to a screening, ideally the premiere of the film.

Protecting your Ideas

For example, if you think you are onto something big [a great concept for a TV show, a book, anything you deem valuable and steal-able], write down or record it somewhere and post it to yourself, to establish a dated proof of ownership. If you have the time, get it certified by a Justice of the Peace [they usually do this for free] – or hire a lawyer to ascertain your right to the concept. Lets be very clear: an idea is not protectable, it can’t be owned per se, you must have committed it into a conceptual form, so that a value can be attached to it.This makes some sense, as ideas are a plenty [and therefore less valuable], but the ability to make this idea happen requires a method, a conceptual understanding, work needs to be put into it – and hence it becomes valuable and you may want to protect it.In the documentary and community arts sector this may seem overkill and mostly you will be fine with a handshake between friends, when it comes to concepts and ideas. But if you are not sure, get your potential partners or collaborators to sign a NDA Non-Disclosure Agreement, just to make it clear to them that you’re serious about the value of the project and that you will protect it. Don’t be afraid to do this, as unfortunately there are lot of sharks in these waters…And finally, beware that if you become overprotective you may end up never making the project. A SWOT analysis can be helpful, to separate the project ‘needs’ from your needs to be involved, and the community needs.

Recent Project: Creating Together

We have been successful with our recent Australia Council for the Arts funding submission. We are working now with our national partners [Arts Access Victoria, Weave Movement Disability Theatre, Visionary Images, Darwin Community Arts, Nexus Arts, University of Western Sydney and Ngarrindjeri Regional Authority] to develop the roll out with... read more